In
August, I was fortunate to attend a dedication ceremony for Wao Kele
o Puna, the 25,856-acre rainforest on the flanks of Kīlauea Volcano.
The ceremony was held in the forest itself, near the site of an abandoned
geothermal well, a testament to the folly of trying to harness Pele.
The beautiful morning was hot and humid, with clouds building up throughout
the day. Wao Kele o Puna is a descriptive term that means the rain-belt
of Puna – an area where clouds attracted by the forest, accumulate.
Thus it was not unexpected when rain fell in the late afternoon and
a rainbow appeared as a blessing to close the day. It was a sweet day
indeed for the many involved in more than twenty years of protest and
litigation over the fate of Wao Kele.

For
Hawaiians, three important elements converged in the dispute over Wao
Kele o Puna – the spiritual and religious importance of the area as
the home of Pele; the traditional use of Wao Kele o Puna for subsistence,
cultural, and religious purposes; and the designation of these lands
in the 1848 Māhele – converting the Hawaiian communal land system into
a Western private-property system – as Hawaiian Government lands. Following
the illegal overthrow of the Hawaiian government in 1893 by U.S. military-backed
American businessmen, Government Lands were “ceded” to the U.S. in the
1898 Joint Resolution annexing Hawai‘i. When Hawai‘i became a state,
the Admission Act provided that the state was to hold ceded lands, with
some exceptions, as a public trust for five trust purposes, including
“the betterment of conditions of native Hawaiians.” See Section 5(f),
Admission Act, Pub. L. No. 86-3, 73 Stat. 4.

The
legal controversy over Wao Kele o Puna began in the early 1980s when
a large landowner, Campbell Estate, sought to develop geothermal energy
on Kahauale‘a, a 25,000-acre parcel of conservation land adjacent to
Volcanoes National Park and upland from Wao Kele o Puna. When lava flows
overran Kahauale‘a, making geothermal development untenable, Campbell
Estate and the State proposed an exchange of Kahauale‘a lands for Wao
Kele o Puna and part of the Puna Forest Reserve. See Dedman v. Board
of Land and Natural Resource, 69 Haw. 255, 740 P.2d 28 (1987),
cert. denied, 485 U.S. 1020 (1988). This was an astonishing
proposition because Wao Kele o Puna was designated a Natural Area Reserve
by state law – a designation reserved for pristine areas supporting
unique natural resources, which were intended to be preserved in perpetuity.
See HAW. REV. STAT. § 195-1, et. seq.

Moreover,
Native Hawaiians, and in particular those who honor or are genealogically
connected to Pele and her ‘ohana or extended family, believe that geothermal
drilling desecrates Pele’s body and takes her energy and lifeblood.
In contested case hearings on geothermal development in Wao Kele o Puna,
individual Pele practitioners challenged the proposal on First Amendment
free exercise of religion grounds. On appeal, the Hawai‘i Supreme Court,
although acknowledging the sincerity of the religious claims, determined
that there was no burden on the exercise of religion, without proof
that religious ceremonies were held in the specific area of development.
See id. at 261,740 P.2d at 33.

The
Pele Defense Fund, including Pele practitioners and Native Hawaiians
living in ahupua‘a adjacent to Wao Kele o Puna, then brought suit in
federal court challenging the land exchange. PDF argued that the lands
had been exchanged without any attempt to assess the impact on the trust
purposes expressed in the Admission Act and that at least two of the
trust purposes – the betterment of the conditions of Native Hawaiians
and public use of the lands – were violated by the exchange. Ultimately,
the case was dismissed, barred by the state’s immunity under the Eleventh
Amendment. See Ulaleo v. Paty, 902 F. 2d 1395, 1399-1400 (9th
Cir.1990).

PDF
also challenged the land exchange in state court, but the Hawai‘i courts
determined the federal court decision barred re-litigation of the land
exchange. Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d
1247 (1992). Nevertheless, the case was an important victory for Native
Hawaiians who use Wao Kele o Puna for hunting, gathering, and religious
and cultural purposes. The Hawai‘i Supreme Court recognized that customary
and traditional rights, which had been limited by residency within an
ahupua‘a, could be exercised for subsistence, cultural, and religious
purposes, on undeveloped lands beyond the boundaries of the ahupua‘a
of residence where “such rights have been customarily and traditionally
exercised in this manner.” Id. at 620, 837 P.2d at 1272. On remand to
the trial court, PDF members were able to validate their subsistence,
cultural, and religious practices in Wao Kele o Puna – beyond
the boundaries of the ahupua‘a in which they actually resided – in accordance
with ancient custom and tradition. See, Pele Defense Fund v. Estate
of James Campbell, Final Judgment, Civ. No. 89–089 (Haw. 3d Cir.
2002), at 2.

Efforts
to stop geothermal development in Wao Kele o Puna also took the form
of civil disobedience and political protest. In March 1990, more than
a thousand protestors, led by the Pele Defense Fund and the Big Island
Rainforest Action Network, marched to the locked gates leading to the
geothermal site in Wao Kele o Puna; more than a hundred people were
arrested. See, Theresa Dawson, Hawaiian, State Agencies Race to
Reclaim Wao Kele O Puna from Campbell Estate, ENVIRONMENT HAWAI‘I,
Oct. 2005, at 5. Ironically, even with significant federal and state
support, geothermal development was an economic failure. The project
was abandoned and the land lay idle. Id. In 2001, Campbell
Estate announced its intent to sell Wao Kele o Puna.

Pele
Defense Fund approached the Trust for Public Land (TPL), a national
nonprofit land conservation organization, and TPL worked with the state
Department of Land and Natural Resources (DLNR) over several years,
to get substantial funding from the federal Forest Legacy Program for
purchase of Wao Kele o Puna. The Office of Hawaiian Affairs, established
in the Hawai‘i Constitution to receive a portion of “ceded” lands revenue
and to better the conditions of the Hawaiian community, stepped forward
with final crucial funding. See HAW. CONST. art. XII, §§ 5-6; HAW. REV.
STAT. CH. 10.

The
agreement reached by OHA, TPL, and DLNR was groundbreaking – OHA would
receive title to Wao Kele o Puna. TPL negotiated the sale and purchase
of the land from Campbell Estate, and then conveyed Wao Kele o Puna
to OHA in July 2006. See, Wao Kele o Puna Forest Acquired by the
Office of Hawaiian Affairs in Partnership with the Pele Defense Fund,
the Trust for Public Land, and the Department of Land and Natural Resources,
OHA Press Release, July 19, 2006. Although state law allows OHA to hold
title to lands, it has never had a land base and lacks land management
experience. Thus, under an agreement reached by OHA and the DLNR, they,
along with the surrounding communities, will manage the forest in partnership
until OHA is ready to assume total management responsibility. See
id.

The
reclamation of Wao Kele o Puna is the first return of ceded lands to
Native Hawaiian ownership since the 1893 overthrow of the Hawaiian kingdom
and holds promise as part of a land base for a future Hawaiian nation.
Equally important is the role that Native Hawaiians have played in reclaiming
Wao Kele o Puna as a place where indigenous customs, traditions, and
religion remain intact. At the dedication ceremony, Pele Defense Fund’s
Palikapu Dedman, acknowledged that, “It’s been a real emotional journey,
and I feel real proud about how far we’ve come as Native Hawaiians.
But we gotta grow on this; we have to stand up for ourselves and keep
doing what we’re doing, and if government’s gonna have to catch up,
they’re gonna have to catch up. But we still have to be there to remind
them of their responsibility to indigenous people.”

The
theme of the dedication ceremony was “Māpu ke‘ala o Puna, the
fragrance of Puna permeates,” referring to the fragrance of maile, lehua,
and hala that are abundant in the uplands of Puna. It was said that
when the wind blew from the land, even fishermen at sea could smell
the scent of these three plants, all closely associated with Pele and
held dear by Hawaiians. But the phrase also has importance in another
sense. For it reminds us of the spirit – the fragrance – of Puna that
lives in all those who worked so hard for so many years to preserve
Wao Kele o Puna, and it is a call to have that same strength and dedication
permeate our own lives and work.